Companies Act 1870 (SA)
ANNO TRICESIMO TEnTIO ET TRICESIMOQUARTO
No. 22.
An Act to amend the Conpnies Act, 1864.
[Asscnted to, 13th January, 1871.1
HEREAS it is expedirnt to ameud " The Companies Act, | Preamble. |
W | Province of South Australia, with the advice and consent of the |
Legislative Council and House of Assembly of the said Province, in this prcscnt Parliament assembled, as follows :- |
l. Wherever in thc said Act or in this Bct the "Supreme Court" | Court to |
Supremo Court in its |
or | The Court | Equitable J urisdic- |
in its Fquitable Jurisdiction shall be interded; and wherever in the | tion. |
said Act or in this Act a "Judge" is mentioned or referred to, the | |
Primary Judge in Equity shall be intended; and if there shall be | Primary Judge. |
no such Judge, then any one of the Judges of the Suprenzc Court sitting in Chambers may do all such acts, and hear and determine all such matters and things as by the said Act or by this Act is |
Companies
Act
1864," to be | ||
if passed after Equity Act, 1866, and to be | ||
the same had been passed after the Equity Act, 186G," came into | ||
operation; and this Act and " The Companies Act, 1864," shall be read and construed as one Act. | ||
The Companies | 1864," not to apply |
to any company or CO-partnership which carries on the business of | to insurance com- |
panies. |
insurance |
35" &34" VICTORUE, No.22,
Companies Act Amendmefit Act.--1 870-71. insurance against loss or damage by fire, or the business of marine or life insurance. either alone or in common with
any other business or
Proviso aa to
businesses: ~rovided always that this section shah not apply to any | ||
such company or CO-partnership already registered under "The | ||
|
Companies Act,
1864,- | 4. The provisions of | The Companies Act, 1864," shall not |
formed, or to be formed, |
for the purpose of carrying on thc business of banking. |
more |
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1865," nor to '"l'he | Industrial and Provident Societies Act, 1864." |
Where documents
6. All documents delivered to the Registrar of Companies, undcr |
the provisions of this Act, &all be kept at such office or place in | |
Adelaide, as the Governor shall by notice in the | |
Government |
the Companies Act, 1864," | ||
the word " Associate " or " Chief Clerk" occurs, the said schedules shall be read and construed as if, in lieu of such words, the words | |||
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8. Where, after the commencement of this Act, a company is formed as a limited company, under the provisions of " The Com- panies Act, 1864," the liability of the directors or managers of such company, or the managing director may, if so provided by the memorandum of association, be unlimited. | |
directora~
9. The following modifications shall be made in the thirty-seventh butions to be required, in the event of the winding up of a limited company under the last mentioned Act, from any Director or Mans.ger whose liability is in pursuance of this | |
section of "The Companies Act, 1864," with respect to the contri | |
First-Subject | to the provisions hereinafter contained, any such |
director or manager, whether past or present, shall, in addi-
tion
-, |
870-7 1. |
P tion to his liability (if any) to contribute as an ordinary member, be liable to contribute, as if he were at the date of the commencement of such winding up a member of an un- limited company.
Second--No contribution required from any past director or manager who has ceased to hold such office for a period of one year or upwards prior to the commencement of the winding
up, shall exceed the amount (if any) which he is liable to
contribute as an ordinary member of the company.
Third-No | contribution required from any past director or manager in respcct of any debt or liability of the company cor~lractcd after the time at which he ceased to hold such office, shall exceed the amount (if any) which he is liable to contribute as an ordinary member of the company. |
Fourth-Subject | to the plwvisions contained in the regulations of |
the company, no contribution required from any director or manager shall exceed the amount (if any) which he is liable
to contribute as an ordinary member, uuless the Court deems
it necessary to require such contribution in order to satisfy the debts and liabilities of. the company, and the costs, charges, and expenses of the winding up.
10. I n the event of the winding up of any limited company, the Court, if i t think fit, may make to m y direcior or manager of such | ||
have set-off as | ||
company, wliosc liability is unlimited, the same allowance by way of | ||
set-off, as undcr the nintv-fifth section of " The Compaiiics Act, 1864," it may make to a eontdbutory where the comiany is not limited. | ||
11. In any limited company in which in pursuance of this Act the liability of a director or manager is unlimited, the director or | ||
that his liability | ||
manager ot'the company (if any), &d the member who proposes | ||
such proposal a statement that the liability of the person holding | any person for clection or appointment to such office, shall add to |
-
such office will be unlimited, and the promoters, directors, managers, and secretary (if any) of such company, or one of them shall, before such person accepts such office, or acts therein, give hinl notice in writing that his liability will be unlimited: If any director, manager, or proposer, make default in adding such stat&ent, or if any promoter, director, manager, or secretary make default in giving such aotice, he shall be liable to a penalty not exceeding One Hundred Pounds, and shall also be liable for any damage which the person so elected or appointed may sustain from such default; but the liability of the person elected or appointed shall not be affected by such default.
whether formed before or after the commencement of this
Act, may,,,ol,i,,
by a special resolution, if authorized so to do by its regulatioiis as |
originally
33" &34" VICTORIB, No.22.
870-7 1. |
originally framed, or as altered by special resolution from time to
time, modify the conditions contained in its memorandum of asso-
ciation so fhr as to render unlimited the liability of the directors or managers, or of the managing director, and such special resolution shall be of the same validity as if it had been originally contained in the memarandurn of association, and a copy thereof shall be em- oodied in or annexed to every copy of the memorandum of associa- tion which is issued after the passing of the resolution; and any default in this respect shall be deemed to bc a default in complying with the provisions of the fifty-third section of LcThe Companies
Act, 1864," and shall be punished accordingly.
G/L#. | ,+.p |
15.
A company which has passed a special resolution for reducing
satisfied that, with respect to c v e ~ y creditor of the company who, under thc provisions of this Act, is entitled to object to the reduction, either his consent to the reduction has been obtained, or his dcbt or
claim has been discharged, or has determined, or has been secured,
as hereinafter provided, may make an orclcr confirming the reduction,
on such terms and subject to such conditioils as it dcems fit.
Creditora mayohject
16. Where a company proposes to reduce its capital, every creditor |
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17. W here
ai-venso
17. Where a creditor, whose name is entered on the list of credi- |
tors, and whose debt or claim is not discharged or determined, does
tor on securitv being
ilebt.
not consent to the proposed reduction, the ~ & r t | may (if it think fit), |
dispense with such consent on the company securing the payment of the debt or claim of such creditor, by setting apart and appropriating in such manner as the Court may direct a sum of such amount as is hereinafter mentioned, that is to say-
First--If | the full amount of the debt or claim of the creditor is admitted by the company, or though not admitted is such as the company are willing to set apart and appropriate, then the full amount of the debt or claim shall be set apart and appropriated. |
Second-If | the full amount of the debt or claim of the creditor is not admitted by the company, and is not such as the com- pany are willing to set apart and appropriate, or if the amount is contingent, or not ascertained, then the Court may (if it think fit) inquire into and adjudicate upon thc validity of such debt or claim, and the amount for which the com- pany may be liable in respcct thereof, in the same manner as if the company were being wound up by the Court, and the amount fixed by the Court on such inquiry and adjudication shall be set apart and appropriated, |
him of an order of the Court confirming the reduction of the | 18. The Registrar of Companies, upon the production to Order and |
capital of a company, and the delivery to him of a copv of the order and of a minute (approved bp the Court), showing, with respect to the capital of the company as altered by the order, the amount of such capital, the number of shares in which it is to be divided, and the amount of each share, sEiall register the order and minute; and, on the registration, tlie special resolution confirmed by tlie order so registered shall take effect: Noticc of such registration shall be published in such manner as the Court may direct. The Registrar shall certify under his hand the registration of the order and minute,
tions of this Act, with respect to the reduction of capital, have been | and his certificate shall be conclusive evidence that all the requisi- | complied with, slid that the capital of the company is such as is stated in the minute. |
19. The minute, when registered, shall |
stituted for the corres~onding | nart of the memorandum of association |
of the company, and :hall be&' the same validity, and subject to the same alterations, as if it had been originally contained in the memo- randum of association; and subject, as in this Act mentioned, no member of the company, whether past or present, shall be liable, in respect of any share, to any call or contribution exceeding in amount the difference (if any) between the amount which has been paid on such share and the amount of the share as fixed by the minute.
20. If any creditor who is entitled, in respect of any debt or claim,
Saving of right8 of
33" $340 VICTORIB, No. 22.
Compwies Act Amendment Act.--1 870-7 1. to object to the reduction of the capital of a company under this Act, is, in consequence of his ignorance of the proceedings taken with
a view to such reduction, or of their nature and effect with respect to his claim,-not entered on the list of creditors, and after such reduction the company is unable, within the meaning of the
seventy-sixth section of The Companies Act, 1864," to pay to the |
creditor the amount of such debt or claim, every person who was a member of the company at the date of the registration of the o~der and minute relating to the reduction of the capital of the company, shall be liable to contribute for the payment of such debt or claim an amount not exceeding the amount which he would have been liable to contribute if the company had commenced to be wound up on the day prior to such registration; and on the company being wound up, the Court, on the application of such creditor, and on proof that he was ignorant of the proceedings taken with | |
the memorandum of association, issued after its registration, and if | |
any company makcs default in complying with the provisions of this section, it shall incur a penalty not exceeding One Pound for each copy, in respect of which such default is made; arid every director | |
and manager of the company, who shall knowingly and wilfully | |
authorize or permit such default shall incur the like penalty. |
the company wilfully | ||
conceals the name of any creditor of the company, who is entitled to objcct to the proposed reduction, or wilfully misrcprescnts the nature or amount of the debt or claim of any creditor of the company, or if | |||
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The powers of making and enforcing rules concerning winding- |
male and enforce
up, conferred by the one hundred and fifty-sixth and the one hundred | |
and fifty-seventh sections of The Companies Act, 1864," shall re- | |
spectively extend to making and enforcing rules concerning matters | |
in which jurisdiction is by this Act given to the Supreme Court, and | |
until such rules are made the practice of the Court, in matters of the same nature shall, so far as the same is applicable, be followcd. |
, | Subdivision of Shares: |
Shares may be
24. Any company limited by shares, may, by special resolution, so |
far modify the conditions contained in its memorandum of association, if |
33" &34YICTORIB, No. 22.
Companies Act Amendment Act.-1 870-71. if authorized so to do by its regulations as originally framed, or as altered by special resolution, as by subdivision of its existing shares, or any of them, to divide its capital, or any part thereof, into shares of smaller amount than is fixed by its memo~andum of association: Provided that, in the subdivision of the existing shares, the propor- tion between the amount which is paid, and the amount ( if any) which is unpaid on each share of reduced amount, shall be the samc as it was in the case of the existing share or shares from which the sharc of reduccd amount is derived.
25. The statement of the number and amount of the shares into ~ ~ ~ i ~; ;; ~ ~ gwhich thc ca~itrtl of thc company is divided, contained in every memornndurn
of
any such special resohition, shall bc in accordance with such resolu- tion; and, any, company which makes default in complying with the provisions of this section, shall incur a penalty not exceeding One | copy of the &crnorandum of a&ociation issuecl after the passing df |
Calls upon shares:
26. Nothing contained in "The Companies Act, 1864," shall be~, " e p, & ~ a ~ ~ ~ o deemed to prevent any company under that Act, if antliorized by its paid
and others not. regillations as originally framed, or as altered by special resolution,
from doing any one or more of the following things, namely :-
First-Making | arrangements on the issue of shares for a differ- |
ence between the holders of such shares in the amount of
calls to be paid and in the time of payment of such calls.
Second-Accepting | from any member of the company who |
assents thereto the whole or a part of the amount remaining unpaid on my shale or shares held by him cithcr in discharge of the amount of a call payable in respect of any other
share or shares held by him, or without any call having been | made. |
Third-Paying |
dividend in proportion to the amount paid up on |
each share, in cases where a larger amount is paid up on
some shares than on others.
have been issued, and to be held | ubject to thc payment of the whole |
amount thereof in cash, unless he same shall have been otherwise
determined by a c o n. c t, duly made in writing, and filed with the | -, |
Registrar of Compan~es, | at or bcfore the issue of such shares. |
Transfer |
28. |
share or interest
in the company, cnter in its register of memberstransferor,
' J - i. 3 | 'h/- | " f ' ~ s c ~ s, 2 ~ - | - |
Companies Act Amendment Act.-1870-7:. the name of the transferee of such share or interest, in the same manner
and subject to the same conditions as if the application forsuch entry were made by the transferee.
Share warrants to bearer:
wmnt Oflimika
a share warrant.
the shares or stock specified in it, and such shares or stock may be transferred by the delivery of the share warrant. | ||
of the company, be entitled, on surrendering such warrant for cnn- | |
company may make 32. The bearer ofrt share warrant may, if the regulations of the
the bearer of a dare C0mp8ny SO provide, be deemed to be a member of the companywarrant within the meaning ofC c The Companies Act, 1864," either to thefull extent or for such purposes as may be prescribed by the regu-
lations: Provided that the bearer of a share warrant shall not be
for being a director or manager of the company in cases where such qualified in respect of the shares or stock specified in such warrant | a qualification is prescribed by the regulations of the company. |
Entries in regiater
I. The fact of the issue of the warrant:
11. A statement of the shares or stock included in the warrant,distinguishing each share by its number:
m. The date of the issue of the warrant:
And until the warrant is surrendered the
above particulars shall be
deemed deemed to be the particulars which are required by the twenty- fourth section of " The Companies Act, 1864," to be entered in the register of members of a company; and on the surrender of a warrant the date of such surre~lder shall be entered as if it were the date at which a person ceased to be a member.
yearly summary required by the twenty-fifth section of " The Corn-
marp. panies Act, 1864," shall contain the following particulars :--The
total amount of shares or stock for which share warrants are out-
standing at the date of the summary, and the total amount of share
warrants which have been issued and surrendered respectively since
the last summary was made, and the number of shares or amount of
stcjck comprised in each warrant.
puts off, knowing the same to be forged or altered, any share war- | 35. Whosoever fbrges, or alters, or off'ers, utters, disposes of, or |
rant or coupon issued in pursuance of this Act, or demands, or en- dcavors to obtain or receive any share or interest of OP in any com- pany under " Thc Companies i4ct,
1864," or to receive any dividendOF money payable in respect thereof by virtue of any such forged or
altered share warrant, coupon, or document purporting as aforesaid, knowing the same to be forged or altered, with intent in any of the cases aforesaid to defraud, shall bc guilty of felony, and being con- victed thereof shall be liable to the like punishment as if he had been convicted of forgery.
36. Whosoever falsdy and deceitfully pcrsonatcs any owner of |
any share or interest of or in any company, or of any share warrant,
ownerofshares. or coupon issued in pursuance of this Act, and thereby obtains or
endeaqors to obtain any such share or interest, or share warrant, or
coupon, or receives or endettvors to rcccivc any money due to any
such owner as if such of£'ender were the true and lawful owner, shall
be guilty of felony, and being convicted thereof shall be liable to
like punishment as if he had been convicted of obtaining money | under a false pretence. | |
| ||
plate, wood, stone, or other material any share warrant or coupon, purporting to be a share warrant, or coupon issued or made by any particular company, under, and in pursuance of this Act, or to be a blank share warrant, or coupon, issucd or madc as aforesaid, or to be a part of such a share warrant, or coupon, or uses any such plate, wood, stone, or other material for the making or printing any such share warrant, or coupon, or any such blank share warrant, or coupon, or any part thereof respectively, or knowingly has in his custody or possession any such plate, wood, stone, or other material, shall be guilty of felony, and being convicted thereof shall be liable to the like punishment as if he had been convicted of forgery. |
21 Contracts:
33" &34" VICTORIZ, No.22.
870-7 1. |
Contracts:
Prospectus, &C., to
before the issue of such prospectus or notice, whether subject to adoption by the directors of the company or otherwise, and any prospectus or notice not specifying the same, shall be deemed frau- dulent on the part of the promoters, directors, and officers of the company, knowingly issuing the same, as regards any person taking shares in the company on the faith of such prospectus,unless he shall have had notice of such contract,
Meetings:
Company to hold
after the commencement af t l is Act shall hold a general meeting | |
within four months after the memorandum of association is regis- tered; and if such meeting is not held, the company shall be liable to a penalty not exceeding Five Pounds a day for every day after the expiration of such four months until the meeting is held; and every director or manager of the company, and every subscriber of the memorandum of association, who lmowingly authorizes or per- mits such default, shall be liable to the same penalty. |
Winding up:
Winding up-con-
40. No contributory of a company under " The Companies Act, |
1864," shall be capable of presenting a petition for winding up such | ||||
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to less ihan seven or unless. the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him, and registered in his name for a period of at least six months during the eighteen months previously | ||||
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held by, or registered in the name of, the wife of a contributory, either before or after her marriage, or by or in the name of any trustee or trustees for such wife, or for the contributory, such share shall, for the purposes of this section, be deemed to have been held by and registered in the name of the contributory. |
Saving :
NO^ to exempt 41. Nothing in this Act contained shall exempt any company
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Rules :
as
P P |
Companies Act Amendment Act.-1870-71.
as the said Court or Judges shall deem necessary for carrying intoeffect the objects and provisions of this Act, and of " The Companies Act, 1864," and may from time to time alter, revoke, and vary such rules, and make such new and additional rules, as to the said Court or Judges shall seem necessary.
In the name and on behalf of the Quecn I hereby assent to
this Act.
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